Case Number: BC629940 Hearing Date: August 09, 2018 Dept: O

Kochis v. Fitness International, LLC, et al. (BC629940)

Defendant Muscle Bar, LLC’s MOTION TO FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION OF ISSUES

Respondent: Plaintiff Kochis

TENTATIVE RULING

Defendant Muscle Bar, LLC’s motion to for summary adjudication is DENIED as to Issue 1, and GRANTED as to Issue 2. As triable issues remain, summary judgment is DENIED.

Defendant Muscle Bar, LLC moves for summary judgment and/or adjudication pursuant to CCP 437c.

Defendant’s evidentiary Objection 18 is sustained. Remaining objections are overruled.

StandardA defendant moving for summary judgment/adjudication has met his burden of showing a cause of action has no merit if the defendant can show one or more elements of the plaintiff’s cause of action cannot be established. (CCP 437c(p)(2).)

ISSUE 1

PRODUCT SALE:

Defendant contends summary judgment is proper because there is no evidence that Muscle Bar sold Plaintiff the Ncineration-X supplement that allegedly caused him injury.

Defendant submits evidence that Plaintiff’s receipt on 8/7/14 showed that he purchased two dietary supplements for protein powder and Liver Armor. (Defense Separate Statement (DSS) 7.) Four days later on 8/11/14, Plaintiff allegedly ingested a supplement called Ncineration-X along with Liver Armor. (DSS 8.)

The court finds Defendant has met its initial burden of production.

In opposition, Plaintiff presents the following evidence: two days before the purchase, he spoke to Yaz, the owner of Muscle Bar, about Ncineration-X; Yaz told him to bring cash and he would order it; two days later, Plaintiff forgot the cash, but Yaz honored the same price and accepted his card; Plaintiff purchased Ncineration-X and Liver Armor; the receipt had protein powder on it, which was not one of the items he bought. (Disputed DSS 7.)

The court finds Defendant has produced sufficient evidence, creating a triable issue as to whether Plaintiff purchased Ncineration-X. Summary adjudication of Issue 1 is DENIED.

ISSUE 2

PUNITIVE DAMAGES:

Defendant contends punitive damages fails because there is no evidence that Muscle Bar was aware of the probable dangerous consequences of Ncineration-X and Liver Armor.

On a motion for summary adjudication with respect to a punitive damages claim, the higher evidentiary standard applies. If a plaintiff is going to prevail on a punitive damage claim, he or she can only do so by establishing malice, oppression or fraud by clear and convincing evidence. Thus, any evidence submitted in response to a motion for summary adjudication must necessarily meet that standard. (Basich v. Allstate Ins. Co. (2001) 87 Cal.App.4th 1112, 1121.)

Defendant presents the following evidence:

Plaintiff cannot prove that Muscle Bar had knowledge of the dangerous consequence of Ncineration-X because it was not banned until after the sale occurred (RJN, Ex. 7.) The court finds Defendant has met its initial burden of production.

In opposition, Plaintiff contends that Defendant either lied to him that the Liver Armor product would make the steroids more tolerable, or had no idea of the dangerousness, but fraudulently rang up the sale to hide the sale of steroids. (Disputed DSS 7.)

The court finds that Plaintiff’s evidence does not support the higher evidentiary standard that applies to punitive damages upon summary judgment. Plaintiff failed to present evidence of Defendant’s “knowledge” of the dangerous consequence of the products. Plaintiff’s evidence supports the fact that a sale may have occurred, and rang up as a different product. However, such does not support awareness that the transaction was done intentionally or fraudulently, and more importantly, such was done with awareness of the dangerous consequence of the products. Summary adjudication of Issue 2 is GRANTED.

Because triable issues remain, motion for summary judgment is DENIED.